Citation Nr: 0411591
Decision Date: 05/04/04 Archive Date: 05/14/04
DOCKET NO. 02-06 986 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUES
1. Entitlement to an evaluation in excess of 30 percent for
chronic nephrolithiasis and nephrocalcinosis with
hypercalciuria and renal leak-type secondary to
hyperparathyroidism and congenital medullary sponge kidney
with hypertension and mitral valve prolapse.
2. Entitlement to an evaluation in excess of 10 percent for
chipped fracture, distal fibula, left.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
L. J. Driever, Counsel
INTRODUCTION
The veteran had active service from June 1973 to September
1977. His claims come before the Board of Veterans' Appeals
(Board) on appeal from a January 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Muskogee, Oklahoma (RO).
In a VA Form 9 received at the RO in May 2002, the veteran
requested a Board hearing at the RO. Thereafter, by letter
dated May 2003, the Board acknowledged the veteran's request
and informed him that a Board hearing had been scheduled for
June 24, 2003. On that date, however, the veteran did not
appear at the RO. Inasmuch as the veteran did not request
postponement of the hearing, the Board considers the hearing
request withdrawn and deems the veteran's appeal ready for
appellate review pursuant to 38 C.F.R. § 20.702(d) (2003).
FINDINGS OF FACT
1. VA provided the veteran adequate notice and assistance
with regard to his claims.
2. Since the veteran filed his claims for increased
evaluations, examiners have consistently indicated that the
veteran's hypertension is poorly controlled with medication
and his diastolic pressure has predominantly been 120 or
more.
3. The veteran experiences no residuals of the chipped
fracture of his left distal fibula.
CONCLUSIONS OF LAW
1. The criteria for entitlement to a 60 percent evaluation
for chronic nephrolithiasis and nephrocalcinosis with
hypercalciuria and renal leak-type secondary to
hyperparathyroidism and congenital medullary sponge kidney
with hypertension and mitral valve prolapse have been met.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.159, 3.321,
4.1-4.14, 4.104, 4.115a, 4.115b, 4.119, Diagnostic
Codes 7101, 7508, 7509, 7904 (2003).
2. The criteria for entitlement to an evaluation in excess
of 10 percent for chipped fracture, distal fibula, left, have
not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§
3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Codes
5256, 5257, 5260, 5261, 5262 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran contends that he is entitled to increased
evaluations for his service-connected disabilities. By
rating decision dated January 2002, the RO denied the veteran
entitlement to these benefits. This appeal ensues from that
decision.
I. VA's Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000
(codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West
2002), eliminated the concept of a well-grounded claim and
redefined VA's obligations with respect to its duties to
notify and assist a claimant. In August 2001, VA issued
regulations to implement the VCAA. 66 Fed. Reg. 45,620 (Aug.
29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159
and 3.326(a) (2003)). The VCAA and its implementing
regulations are applicable to the claims now before the
Board.
The VCAA and its implementing regulations provide that VA
will assist a claimant in obtaining evidence necessary to
substantiate a claim but is not required to provide
assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim. They also require VA to notify the claimant and
the claimant's representative, if any, of any information,
and any medical or lay evidence, not previously provided to
the Secretary that is necessary to substantiate the claim.
As part of the notice, VA is to specifically inform the
claimant and the claimant's representative, if any, of which
portion, if any, of the evidence is to be provided by the
claimant and which part, if any, VA will attempt to obtain on
behalf of the claimant.
The United States Court of Appeals for Veterans Claims
(Court) has mandated that VA ensure strict compliance with
the provisions of the VCAA. See Quartuccio v. Principi, 16
Vet. App. 183 (2002). For the reasons noted below, the Board
finds that VA has complied with the notification and
assistance provisions of the VCAA such that the Board's
decision to proceed in adjudicating these claims does not
prejudice the veteran in the disposition thereof. See
Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).
A. Duty to Notify
First, in a letter dated June 2001, the RO notified the
veteran of VA's newly expanded duties to notify, indicated
that it was developing his claims pursuant to the latter
duty, requested the veteran to submit any pertinent evidence
and information he had to support his claims, particularly,
medical records establishing that his disabilities had
worsened and warranted increased evaluations, and indicated
that it would assist the veteran in obtaining and developing
all pertinent evidence provided he identified the source or
sources of the evidence. The RO noted that it had already
requested evidence in support of the veteran's claims,
including medical records from the VA Medical Center in
Muskogee.
The RO explained that it was required to make reasonable
efforts to assist the veteran in obtaining all pertinent
evidence, including medical records, employment records, and
records from federal agencies, but that ultimately, it was
the veteran's responsibility to ensure the RO's receipt of
all pertinent information. The RO requested the veteran to
identify the names and addresses of individuals who had
relevant records that needed to be secured and the dates of
treatment by those individuals. The RO told the veteran that
he could obtain these records on his own initiative and send
them to the RO. The RO noted that if it scheduled the
veteran for an examination at a VA Medical Center, that
facility would notify the veteran regarding the date and time
of his examination.
The RO sent the aforementioned notice before initially
deciding the veteran's claims. The timing of this notice
thus complies with the express requirements of the law as
found by the Court in Pelegrini v. Principi, 17 Vet. App. at
420-22 (2004) (holding, in part, that a VCAA notice, as
required by 38 U.S.C. § 5103(a), must be provided to a
claimant before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim for VA benefits).
The content of the notice also complies with the express
requirements of the law as found by the Court in Pelegrini.
As previously indicated, this notice informed the veteran of
the evidence and information needed to support his claims.
It also indicated that VA would assist the veteran in
obtaining all outstanding evidence, but that in the meantime,
the veteran should submit any pertinent evidence he had to
support his claims. See Pelegrini, 17 Vet. App. at 422
(holding that VCAA notice consistent with 38 U.S.C. § 5103(a)
and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about
the information and evidence not of record that is necessary
to substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in his possession that
pertains to the claim, or something to the effect that the
claimant should "give us everything you've got pertaining to
your claim). But see VAOPGCPREC 1-2004 (holding that the
Court's statement in Pelegrini that section § 3.159(b)(1),
explicitly, and section § 5103(a), implicitly, requires VA to
request the veteran to provide all evidence in his possession
that pertains to his claim is obiter dictum and not binding
on the Board and that section § 5103(a) does not require VA
to seek evidence other than that identified as necessary to
substantiate a claim).
Moreover, after sending the June 2001 notice, the RO provided
the veteran additional information with regard to his claims
in a rating decision dated January 2002, and a statement of
the case issued in April 2002. In these documents, the RO
again notified the veteran of the information and evidence
needed to substantiate his claims. See 38 U.S.C.A. §§ 5102,
5103 (West 2002). As well, the RO notified the veteran of
the reasons for which his claims had been denied, the
evidence it had considered in denying those claims, and the
evidence the veteran still needed to submit to substantiate
his claims, and provided him the regulations pertinent to his
claims, including those involving VA's duties to notify and
assist.
B. Duty to Assist
VA has made reasonable efforts to identify and obtain
relevant records in support of the veteran's claims. 38
U.S.C.A.§ 5103A(a), (b), (c) (West 2002). Specifically, the
RO secured and associated with the claims file all evidence
the veteran identified as being pertinent to his claims,
including VA and private treatment records. Additionally, VA
has conducted necessary medical inquiry in an effort to
substantiate the veteran's claims. 38 U.S.C.A.§ 5103A(d).
Specifically, the RO afforded the veteran a VA examination,
during which an examiner addressed the severity of the
disabilities at issue in this appeal.
Under the facts of this case, "the record has been fully
developed," and "it is difficult to discern what additional
guidance VA could have provided to the veteran regarding what
further evidence he should submit to substantiate his
claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004);
see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001)
(en banc) (observing that the VCAA is a reason to remand
many, many claims, but it is not an excuse to remand all
claims); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini
v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing
circumstances as to when a remand would not result in any
significant benefit to the claimant); Bernard v. Brown, 4
Vet. App. 384, 393-94 (1993) (holding that when the Board
addresses in its decision a question that has not been
addressed by the RO, it must consider whether the appellant
has been given adequate notice to respond and, if not,
whether he has been prejudiced thereby). The Board thus
finds that VA has done everything reasonably possible to
notify and assist the veteran and that the record is ready
for appellate review.
II. Analysis of Claims
The veteran seeks increased evaluations for his service-
connected disabilities on the basis that the evaluations
currently assigned these disabilities do not accurately
reflect the severity of his symptomatology.
Disability evaluations are determined by evaluating the
extent to which a veteran's service-connected disability
adversely affects his ability to function under the ordinary
conditions of daily life, including employment, by comparing
his symptomatology with the criteria set forth in the
Schedule for Rating Disabilities (Rating Schedule). 38
U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10. If
two evaluations are potentially applicable, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that
evaluation; otherwise, the lower evaluation will be assigned.
38 C.F.R. § 4.7.
Where an award of service connection for a disability has
been granted and the assignment of an initial evaluation for
that disability is disputed, separate evaluations may be
assigned for separate periods of time based on the facts
found. In other words, the evaluations may be "staged."
Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). In
other cases, the present level of disability is of primary
concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
A disability may require re-evaluation in accordance with
changes in a veteran's condition. In determining the level
of current impairment, it is thus essential that the
disability be considered in the context of the entire
recorded history. 38 C.F.R. § 4.1.
A. Genitourinary System Disability
The RO has evaluated the veteran's genitourinary system
disability (characterized as chronic nephrolithiasis and
nephrocalcinosis with hypercalciuria and renal leak-type
secondary to hyperparathyroidism and congenital medullary
sponge kidney with hypertension and mitral valve prolapse) as
30 percent disabling pursuant to Diagnostic Code 7904, which
governs ratings of hyperparathyroidism. 38 C.F.R. § 4.119,
Diagnostic Code 7904 (2003). That diagnostic code provides
that a 10 percent evaluation is assignable for
hyperparathyroidism with fatigability, or; continuous
medication required for control. A 60 percent evaluation is
assignable for hyperparathyroidism with gastrointestinal
symptoms and weakness. A 100 percent evaluation is
assignable for hyperparathyroidism with generalized
decalcification of bones, kidney stones, gastrointestinal
symptoms (nausea, vomiting, anorexia, constipation, weight
loss, or peptic ulcer), and weakness. 38 C.F.R. § 4.119,
Diagnostic Code 7904. Following surgery or treatment, the
disability is to be evaluated as digestive, skeletal, renal,
or cardiovascular residuals or as endocrine dysfunction. 38
C.F.R. § 4.119, Diagnostic Code 7904, Note.
Under Diagnostic Code 7508, the veteran's primary renal
diagnosis, or nephrolithiasis, is to be rated as
hydronephrosis, except for recurrent stone formation
requiring one or more of the following: diet therapy; drug
therapy; or, invasive or non-invasive procedures more than
two times/year, in which case a 30 percent evaluation is
assignable. 38 C.F.R. § 4.115b, Diagnostic Code 7508 (2003).
Under Diagnostic Code 7509, a 30 percent evaluation is
assignable for hydronephrosis with frequent attacks f colic
with infection (pyonephrosis), kidney function impaired. If
the disability is severe, it is to be rated as renal
dysfunction. 38 C.F.R. § 4.115b, Diagnostic Code 7509.
Ratings of the genitourinary system-dysfunctions, including
renal, are set forth at 38 C.F.R. § 4.115a. Under this
provision, a 30 percent evaluation is assignable for renal
dysfunction with albumin constant or recurring with hyaline
and granular casts or red blood cells; or, transient or
slight edema or hypertension at least 10 percent disabling
under Diagnostic Code 7101. A 60 percent evaluation is
assignable for renal dysfunction with constant albuminaria
with some edema; or, definite decrease in kidney function;
or, hypertension at least 40 percent disabling under
Diagnostic Code 7101. An 80 percent evaluation is assignable
for renal dysfunction with persistent edema and albuminaria
with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or
generalized poor health characterized by lethargy, weakness,
anorexia, weight loss, or limitation of exertion. 38 C.F.R.
§ 4.115a (2003).
Under Diagnostic Code 7101, which governs ratings of
hypertensive vascular disease (hypertension and isolated
systolic hypertension), a 10 percent evaluation is assignable
for diastolic pressure predominantly 100 or more, or;
systolic pressure predominantly 160 or more, or; minimum
evaluation for an individual with a history of diastolic
pressure predominantly 100 or more who requires continuous
medication for control. A 20 percent evaluation is
assignable for diastolic pressure predominantly 110 or more,
or; systolic pressure predominantly 200 or more.
A 40 percent evaluation is assignable for diastolic pressure
predominantly 120 or more. A 60 percent evaluation is
assignable for diastolic pressure predominantly 130 or more.
38 C.F.R. § 4.104, Diagnostic Code 7101 (2003).
Based on the aforementioned criteria and for the reasons
explained below, the Board finds that the veteran's
genitourinary system disability picture more nearly
approximates the criteria for a 60 percent evaluation under
38 C.F.R. § 4.115a and Diagnostic Code 7101.
During active service the veteran reported that he was
treated for a kidney infection or disease in 1972 or 1973,
prior to entering the service. More specifically, he
reported that a physician prescribed pills after finding that
the veteran's kidney was secreting blood. In September 1974,
the veteran noticed amber-colored urine. He presented to the
emergency room, where personnel drew his blood. His red
blood cells were too numerous to count. A physician
diagnosed prostatitis. Thereafter, the veteran continued to
express numerous kidney-related complaints. Examiners
diagnosed recurrent hematuria, kidney stones, hypercalciuria
of the renal leak type, questionable hyperparathyroidism
(thought to be secondary to the hypercalciuria), and
medullary sponge kidney and nephrocalcinosis (thought to be
secondary to the hypercalciuria and hyperparathyroidism).
They placed the veteran on medication and suggested that he
follow a particular diet. Despite having undergone
urological and endocrinological work-ups, by separation,
examiners had not determined definitively all causes of the
veteran's complaints.
Following discharge, the veteran sought VA and private
treatment and underwent VA examinations. In October 1977,
the veteran passed a kidney stone. During a VA examination
conducted in November 1977, the veteran reported that he had
since had flank pain. He also reported that he was on
medication for recurrent stones and watched his diet. This
pain allegedly limited his physical activities. The examiner
noted blood pressure of 140/80, but no significant punch
tenderness to palpation over the flanks, no suprapubic
tenderness, and unremarkable rectal and extremity
examinations. The examiner diagnosed chronic nephrolithiasis
and nephrocalcinosis with a previous diagnosis of
hypercalciuria of the renal leak type with secondary
hyperparathyroidism and medullary sponge kidney. During VA
outpatient treatment rendered the next day, the veteran's
condition was noted to be stable. He had blood pressure
readings that day and in January 1978 of 120/80 and 122/80.
During a VA examination conducted in January 1983, the
veteran reported that he had hematuria on exercise and last
passed a stone two weeks prior to the examination. He also
reported that he had hypertension and that he was on
medication for his genitourinary and cardiovascular
disorders. He denied flank pain. The examiner noted blood
pressure readings of 150/98 (sitting) and 135/98 (standing).
He noted no abnormalities. He explained that, at that time,
due to stenosis scarring from the injury of the mucosal
layer, the veteran was having less pain than prior to passing
the stone. He diagnosed: (1) chronic nephrolithiasis with
calcinosis with hypercalcuiria of renal leak type secondary
to hyperparathyroidism problem; (2) congenital medullary
sponge kidney; (3) apparently little change from previous
condition.
In letters dated March 1983 and May 1983, Fred A. Ray, M.D.,
wrote that he had been treating the veteran for hypertension
since March 1982. Dr. Ray noted a history of medullary
sponge kidneys, renal calcinosis, and numerous kidney stones
and indicated that the veteran was on multiple medications.
Dr. Ray also indicated that the veteran had difficulty with
back pain, which necessitated the use of medication, the
dosage of which had been increased since service.
In February 1983 and March 1983, the veteran sought VA
outpatient treatment for a kidney stone and back pain. The
veteran explained that, despite numerous years of taking
medication, the stones continued to recur. Examiners
conducted various tests and confirmed left flank pain. One
indicated that, despite earlier comments, there was nothing
to suggest that the veteran had hyperparathyroidism. The
examiner noted that, instead, the veteran had renal lithiasis
and hypertension, which should be treated with something that
was not renotoxic. Blood pressure readings taken during
these visits include: 122/92; 108/86; 138/90; and 150/110.
During outpatient treatment rendered at the Anderson Clinic
from November 1983 to February 1985, the veteran had blood
pressure readings of: 122/86; 114/90; 138/92; 138/104;
140/98; 132/100; 180/98; 134/100; 104/72; 126/88; 120/86;
106/76; and 116/68. Examiners diagnosed mitral prolapse
without evidence of rupture and left and right ventricular
enlargement, mild.
In October 1987, the veteran underwent another VA
examination, during which he reported kidney stones once
every two to three months, chest pain and skipped heart
beats. He indicated that the stones were not incapacitating
on the right side, but were miserable on the left side. The
examiner noted blood pressure of 152/110, a soft, non-tender
abdomen, and no edema in the extremities. Laboratory results
confirmed recurrent nephrolithiasis. The examiner diagnosed
that disease, hypertension with inadequate control by present
medicines, and history of recent palpitations.
During VA treatment rendered from October 1987 to November
1987, the veteran reported chest pain, shortness of breath,
and headaches. His blood pressure was 140/100 and 142/112.
The veteran underwent a VA examination in July 1988, during
which he reported chest discomfort, nearly continuous left
flank pain secondary to the frequent passing of kidney
stones, and symptoms of ulcer disease. The veteran's blood
pressure was 130/98 with no systolic click. An upper
gastrointestinal series revealed no abnormalities. The
examiner noted that the veteran's last stool was guaiac
negative and diagnosed a history of ulcer disease, recently
completed a three month course of medication, and a history
of mitral valve prolapse.
Magnetic resonance imaging conducted in 1995 and 1996, x-rays
of the lumbosacral stone conducted in 1995, and an
intravenous pyelogram with tomograms conducted in 1996 show
that the veteran had bilateral nonobstructing renal
calculi/stones. During VA treatment rendered in March 2000,
he had blood pressure of 160/100 and the examiner indicated
that the veteran's blood pressure needed better control, but
that his multiple medical problems were stable. In September
2000, an examiner noted that the veteran's blood pressure
(128/73) had improved and his thyroid was normal. In March
2001, an examiner noted that the veteran's blood pressure
(132/90) had worsened.
In April 2001, the veteran filed a claim for an increased
evaluation. In response, the RO afforded him another VA
examination, during which the veteran reported poorly
controlled hypertension, an occasional headache, angina,
fatigue, and dizziness, Other than increased kidney stone
formation, he denied any symptoms, including dysuria,
difficulty with urination, and incontinence of urine, related
to his kidneys. He did not indicate that he was on
medication or a special diet for the recurrent kidney stones.
He indicated that he was able to perform all activities of
daily living, but had sexual dysfunction and impotence since
1998 secondary to medication. He noted that he had two jobs,
all functions of which he was able to perform, but that
climbing stairs was difficult.
Blood pressure readings included: 208/140; 190/130; and
188/120. A urinalysis was significant for a few bacteria.
T3 uptake, T4, free T4 index, thyroid hormone and
comprehensive metabolic panel were within normal limits. An
electrocardiogram showed a normal sinus rhythm rate. An
echocardiogram showed biatrial enlargement, mild left
ventricular enlargement, and a very small patent for laminal
valley or atrial septal defect noted with minimal left to
right flow. The veteran had an ejection fracture of 55 to 60
percent, which, according to the examiner, fit the New York
Heart Association's criteria for no restriction.
The examiner found that there was no pathology to render a
diagnosis of mitral valve prolapse or hyperparathyroidism.
Instead, he diagnosed poorly controlled hypertension, on
medication, chronic nephrolithiasis and nephrocalcinosis with
hypercalciuria of renal leak by history, and medullary sponge
kidney by history. The examiner noted that the veteran was
able to perform all required and essential job functions as a
licensed professional counselor and police officer and all
activities of daily living.
The above evidence supports an increased evaluation for the
veteran's genitourinary system disability. Since his
discharge from active service, the veteran has consistently
had high blood pressure. Recently, however, examiners have
indicated that the veteran's hypertension is poorly
controlled with medication and, with the exception of one
reading, a gradual worsening of that disease has been shown.
More importantly, since the veteran filed his claims for
increased evaluations, his blood pressure has been read on
three occasions, during the November 2001 VA examination, and
on those occasions, the veteran's diastolic pressure was
predominantly 120 or more.
In this case, nephrolithiasis, the veteran's primary renal
diagnosis, is to be rated as hydronephrosis because, although
the veteran has recurrent stone formation, he has not
recently been on diet or drug therapy and he is able to pass
the stones without the aid of any invasive or non-invasive
procedures. Pursuant to Diagnostic Code 7509, hydronephrosis
that is severe is to be rated as renal dysfunction under
38 C.F.R. § 4.115a. 38 C.F.R. § 4.115b, Diagnostic Code
7509. Based on the recurrence rate of the veteran's kidney
stones, the Board characterizes the veteran's
nephrolithiasis, rated as hydronephrosis, as severe.
Accordingly, under 38 C.F.R. § 4.115a, which governs ratings
of renal dysfunction, a 60 percent evaluation is assignable
for constant albuminuria with some edema; or definite
decrease in kidney function; or hypertension at least 40
percent disabling under Diagnostic Code 7101. Under
Diagnostic Code 7101, hypertension is 40 percent disabling if
the diastolic pressure is predominantly 120 or more. Given
this criteria, and based on the blood pressure readings taken
since the veteran's filed his claims, a 60 percent evaluation
is assignable pursuant to 38 C.F.R. § 4.115a and
Diagnostic Code 7101.
An evaluation in excess of 60 percent is not warranted under
Diagnostic Code 7101, however, because 60 percent is the
highest evaluation assignable under that Diagnostic Code.
Nor is an evaluation in excess of 60 percent is also not
assignable under Diagnostic Code 7904 or 38 C.F.R. § 4.115a.
First, although hyperparathyroidism was questionably
diagnosed in service and shortly thereafter, recently, it has
been ruled out. Second, the only renal symptoms of which the
veteran has complained since he filed his claims for
increased evaluations are recurrent kidney stones and
associated flank pain. Doctors have not noted albuminaria
and edema has not been shown since October 1987. Moreover,
the veteran has reported that he has been sufficiently
healthy to function in two jobs and activities of daily
living.
B. Musculoskeletal System Disability
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in the parts of the
system, to perform the normal working movements of the body
with normal excursion, strength, speed, coordination, and
endurance. It is essential that the examination on which
evaluations are based adequately portray the anatomical
damage, and the functional loss, with respect to all of these
elements. The functional loss may be due to absence of part,
or all, of the necessary bones, joints and muscles, or
associated structures, or to deformity, adhesions, defective
innervation, or other pathology, or it may be due to pain,
supported by adequate pathology and evidenced by visible
behavior of the claimant undertaking the motion. Weakness is
as important as limitation of motion, and a part that becomes
painful on use must be regarded as seriously disabled. 38
C.F.R. §§ 4.40, 4.45 (2003); see also DeLuca v. Brown, 8 Vet.
App. 202, 206-7 (1995) (holding that, when assigning an
evaluation for a musculoskeletal disability based on
limitation of motion, it is necessary to consider additional
functional loss due to flare-ups, fatigability,
incoordination, and pain on movement).
The RO has evaluated the veteran's musculoskeletal system
disability as 10 percent disabling pursuant to Diagnostic
Code 5262, which governs ratings of impairment of the tibia
and fibula. Diagnostic Code 5262 provides that a 10 percent
evaluation is assignable for impairment of the tibia and
fibula with slight knee or ankle disability. A 20 percent
evaluation is assignable for impairment of the tibia and
fibula with moderate knee or ankle disability. 38 C.F.R. §
4.71a, Diagnostic Code 5262.
Fractures of the fibula affect the use of the ankle. Other
diagnostic codes that are thus potentially applicable to the
veteran's claim include Diagnostic Code 5270, which provides
that a 20 percent evaluation is assignable for ankylosis of
the ankle in plantar flexion at less than 30 degrees, and
Diagnostic Code 5271, which provides that a 10 percent
evaluation is assignable for moderate limitation of motion of
the ankle and a 20 percent evaluation is assignable for
marked limitation of motion of the ankle. 38 C.F.R. § 4.71a,
Diagnostic Codes 5270, 5271 (2003).
Based on the aforementioned criteria and for the reasons
explained below, the Board finds that the veteran's
disability picture does not more nearly approximate the
criteria for a rating in excess of 10 percent under
Diagnostic Code 5262 or otherwise under the Rating Schedule.
By way of history the Board notes that in April 1974, during
service, the veteran sprained his left ankle. X-rays showed
a soft tissue injury of the left ankle with a very tiny
avulsion fracture inferior to the distal fibula. This injury
resulted in the veteran being placed on a limited duty
profile due to a severe sprain with a chip fracture of the
left ankle. Thereafter, the veteran did not express
complaints concerning his left ankle.
Following discharge in 1977, and up to 2000, the veteran did
not seek treatment for his left ankle. During that time
frame the veteran did undergo VA examinations in November
1977, January 1983, and October 1987. The veteran reported
no complaints associated with his left ankle at any of those
examinations.
During VA outpatient visits from 1996 to 2001, examiners
noted that the veteran had undergone right ankle surgery and
that he still had residual right ankle pain. In March 2001,
the veteran confirmed that he still had pain and swelling of
the right ankle since his surgery. The examiner then noted
minimal edema in the left ankle and pain in the ankle area.
Given the history of right ankle problems and veteran's
report of right ankle symptomatology, the Board is unclear
whether the examiner intended to note findings related to the
left ankle.
The veteran underwent a VA examination in November 2001, at
which time he reported symptoms related to arthritis,
including pain, weakness, stiffness, swelling, instability,
fatigue and lack of endurance. He also reported that these
symptoms were constant and that he was unable to support his
body weight when walking, climbing stairs or lifting. The
examiner noted that x-rays of the left lower leg were
unremarkable and a physical examination showed no
abnormalities of the extremities or musculoskeletal system.
There was no muscle weakness or edema and no constitutional
signs of arthritis. The examiner concluded that there was no
pathology on radiograph to support a diagnosis of a chip
fracture of the left distal fibula. He also concluded that
the veteran was able to perform all required and essential
job functions as a licensed professional counselor and police
officer and all activities of daily living. The examiner
diagnosed no left ankle disability and noted no residuals
thereof.
Clearly, the preponderance of the evidence is against the
veteran's claim for an increased evaluation for a
musculoskeletal disability. First, since discharge from
service, the veteran has not sought treatment for his left
ankle. Second, during the VA examination conducted in
November 2001, the examiner objectively confirmed the absence
of any residuals of the fracture of the left distal fracture.
Third, although one examiner noted left ankle swelling and
pain during an outpatient visit in March 2001, for the reason
noted above, it appears that his finding may have been
recorded in error. Regardless, such symptoms are already
contemplated in the 10 percent evaluation currently assigned
the veteran's musculoskeletal disability.
C. Conclusion
The rating schedule is designed to accommodate changes in
condition; therefore, the veteran may be awarded another or
an initial increased evaluation in the future should either
of his disability pictures change. See 38 C.F.R. § 4.1
(2003). At present, however, the Board finds that a 60
percent evaluation, and no more, is warranted for the
veteran's genitourinary disability and that no more than a 10
percent evaluation is warranted for the veteran's
musculoskeletal disability.
There is no indication that the schedular criteria are
inadequate to evaluate either of the disabilities at issue in
this appeal. The veteran does not assert, and the evidence
does not establish, that either of these disabilities, alone,
causes marked interference with employment (i.e., beyond that
contemplated in the assigned evaluation) or necessitates
frequent periods of hospitalization. In fact, as noted
above, the veteran has been able to successfully maintain his
employment despite his genitourinary problems. The Board
also notes that the type of genitourinary symptoms manifested
are exactly those contemplated under the Rating Schedule and
that the manifests no objective residuals attributable to his
service-connected left lower extremity disability.
Accordingly, the veteran's claims do not present such
exceptional or unusual disability pictures as to render
impractical the application of the regular schedular
standards and the Board is not required to remand these
claims to the RO for the procedural actions outlined in
38 C.F.R. § 3.321(b)(1) (2003). See Bagwell v. Brown, 9 Vet.
App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96
(1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
The Board concludes that the criteria for an increased
evaluation for a genitourinary disability, to 60 percent have
been met. The Board also concludes that the criteria for an
increased evaluation for a musculoskeletal disability have
not been met. In reaching the latter decision, the Board
considered the complete history of the musculoskeletal
disability as well as the current clinical manifestations and
the effect the disability has on the earning capacity of the
veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2003). In addition,
the Board considered the applicability of the benefit-of-the-
doubt doctrine, but as there was no approximate balance of
positive and negative evidence of record, reasonable doubt
could not be resolved in the veteran's favor.
ORDER
An evaluation of 60 percent, and no more, for chronic
nephrolithiasis and nephrocalcinosis with hypercalciuria and
renal leak-type secondary to hyperparathyroidism and
congenital medullary sponge kidney with hypertension and
mitral valve prolapse, is granted subject to statutory and
regulatory provisions governing the payment of monetary
benefits.
An evaluation in excess of 10 percent for chipped fracture,
distal fibula, left, is denied.
____________________________________________
J. M. Daley
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, Diagnostic Code 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, Diagnostic Code 20420
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Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, Diagnostic Code 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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